Getting a trademark

I know you've seen that little "TM" in a circle indicating that a logo or series of words has been trademarked, but what you don't know is that this specific symbol may not amount to a hill of beans in court. The fact that you've used that symbol indicates your desire for exclusivity, but if you have not registered your mark, the U.S. Patent and Trademark Office has not given you exclusive use.

That only comes after a hard and expensive slog through the bureaucracy.

When you're finished, you will be allowed to put the "R" in a circle next to your mark indicating you have followed the rules and have exclusive use of that symbol or set of words. If you are not intending to sell your trademarked goods over your state line, having a registered trademark may not be necessary.

Here are the basics you need to know when making a decision:

- Definition: Just to be certain we are talking about the same thing; let's define a trademark using the patent office definition. "A trademark is a word, name, symbol or device used by a manufacturer or merchant to identify his service and distinguish it from others." Among other things, this definition covers logos, trade names, trademarks, service marks, slogans, sizes, shapes and colors. Trademarks are different from patents, which protect certain products or processes, and from copyrights, which protect the expression of ideas in such items as books, movies and computer software.

- Where to obtain information: Begin by visiting http://www.uspto.gov. From this page, you can perform a preliminary search to see if anyone is presently using your new mark, to check the status of marks and to apply for yours. You can do the whole thing online or you can download forms and use regular mail. There is a lot of information on this site, so spend some time roaming through the pages.

- Cost: Be prepared to lay out a minimum of $325 for the patent office to do its work.

- Attorney help: Your local trademark attorney will do everything for you, but the cost can add several thousand more to your basic costs. Most attorneys farm out the critical "trademark search" part of the task to a law firm specializing in patent law such as Thompson & Thompson (http://www.t-tlaw.com). This adds a minimum additional cost between $445 and $605 to your bill. Don't fight this. It's worth the added cost.

- Protection: No one can keep someone from using your protected name, logo or slogan; but having a trademark gives you the right to sue in federal court for actual trademark infringement and for unflattering comparative advertising. This means your competitor may be liable if he or she uses your name without permission or uses it badly in one of their ads. Usually a letter from your firm's attorney to a company infringing on your trademark is enough to get them to quickly pull back and apologize. A trademark is good for 10 years and is renewable with some restrictions.

- Intent to use: You may pre-register trademarks at the conceptual stage, indicating on the application your intent to use at a future date. With available extensions, this protects your product for up to three years while you are completing development. You still have to actually register the trademark.

- State protection: For all intents and purposes, a trademark obtained in your state doesn't mean much. While it may be true that you can stop others in your state from copying your trademark, there is no protection against out-of-state firms using your mark or name. They can even do business in your state using your trademark! Go figure.

Paul Tulenko is a small business consultant based in New Mexico. Additional tips and suggestions are available at www.tulenko.com